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Sipra Gupta Vs. Sankarlal Paul - Court Judgment

LegalCrystal Citation
Subject;Property;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revision Petition Nos. 180, 181, 182, 183, 184 and 187 of 2001
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 16
AppellantSipra Gupta
RespondentSankarlal Paul
Appellant AdvocateB.K. Goswami, C.R. Dey, T. Goswami, G.P. Bhowmik and R. Hazarika, Advs.
Respondent AdvocateC.K. Sarma Barua and P.K. Roy Choudhury, Advs.
DispositionPetitions dismissed
Excerpt:
.....to the effect that there is no whisper as regards to evidence of defaulters',it appears that the said witness has clearly stated in his evidence as follows: ..12. the said evidence clearly shows that the plaintiff/respondent has already hinted that the petitioners/defendants are defaulters. 17. having regard to the aforesaid enunciation of the apex court, as well as upon hearing the learned counsel for the parties and also on perusal of the impugned order dated 25.6.2001. i am of the considered view that if the amendment is allowed by the impugned order the petitioner/defendant are not at all prejudiced. since this court is satisfied that no prejudice has been caused to the petitioner and on being satisfied that no illegality or infirmity has been committed by the trial court in..........heard mr. b k goswami, learned sr. counsel assisted by mrs. t. goswami, also heard mr. c r day, learned counsel assisted by mr. g p bhowmick, learned counsel and mr. r hazarika, learned counsel appearing on behalf of the petitioners. also heard mr. ck sarma barua, learned counsel and mr. p k roy choudhury, learned counsel appearing on behalf of the respondent.2. since the basic question of law involved in all these civil revisions is similar, i propose to take up all these cases together for consideration and dispose of by this common judgment.3. in all these civil revisions, the petitioners have challenged the legality and validity of the impugned order dated 25.6.2001 passed in title suit no.272/89 by the learned civil judge (jr. division) no. 1 at karimganj by which the prayer for.....
Judgment:

A.H. Saikia, J.

1. Heard Mr. B K Goswami, learned Sr. Counsel assisted by Mrs. T. Goswami, also heard Mr. C R Day, learned counsel assisted by Mr. G P Bhowmick, learned counsel and Mr. R Hazarika, learned counsel appearing on behalf of the petitioners. Also heard Mr. CK Sarma Barua, learned counsel and Mr. P K Roy Choudhury, learned counsel appearing on behalf of the respondent.

2. Since the basic question of law involved in all these Civil Revisions is similar, I propose to take up all these cases together for consideration and dispose of by this common judgment.

3. In all these Civil revisions, the petitioners have challenged the legality and validity of the impugned order dated 25.6.2001 passed in Title Suit No.272/89 by the learned Civil Judge (Jr. Division) No. 1 at Karimganj by which the prayer for amendment of the plaint under Order 6, Rule 17 read with Section 151 CPC has been allowed.

4. The facts In brief are that the plaintiff/respondent has filed the suit under Assam Rent Control Act, 1972 (for short 'the Act') for getting khas possession of the suit land (land and houses comprised thereon) mainly on the ground of bona fide requirement by evicting the defendants/petitioners therefrom. The suit was contested by the defendant/petitioners by filing written statement. Examination of witnesses of the plaintiff had also been closed. But at the time of cross-examination of the witnesses, the plaintiff/respondent preferred an application under Order 6, Rule 117 read with Section 151 CPC seeking amendment of the said plaint by way of insertion of the ground of 'defaulters' in addition to already taken ground of 'bona fide requirement'.

5. The learned Civil Judge on perusal of the said application and upon hearing the parties, on being satisfied, passed the impugned order allowing the amendment. Hence these Civil Revisions.

6. Challenging the impugned order, Mr. B K Goswami, the learned counsel appearing on behalf of the petitioners, contends that the amendment in question allowed by the court below, cannot be sustained mainly on the ground that the said application for amendment has been filed after a lapse of more than 11 years and after adducing the evidence of the parties which is not permissible. He contends that the application filed at such a belated stage, cannot be accepted on the simple ground that the delay has not been properly explained. That apart, due to such allowances to amend the plaint, the petitioners have been greatly prejudiced because it has opened a new case which would result in taking the entire evidence afresh. By such Impugned amendment the entire concept of the provisions of Order 6, Rule 17 CPC has been defeated and accordingly the impugned order allowing amendment deserves to be set aside.

7. Supporting his argument Mr. Goswami relied on a decision of the Apex Court in Shrimoni Gurdwara Committee v. Jaswant Singh (1996) 11 SCC 690 wherein the Apex Court in clear terms held that when there !s no explanation given as to why the party came forward with the plea for amendment at belated stage, after the parties had adduced the evidence, no amendment is permitted. In the instant case the plaintiff/respondent totally failed to explain such delay in approaching the Court praying for amendment when the evidence of the parties have almost been closed.

8. Mr. C R Dey, learned Sr. counsel appearing on behalf of the petitioner in Civil Revision No. 187/2001, forcefully urges that in the evidence so far adduced by the plaintiff himself, there Is no wishper as regards 'the defaulters' which itself debars the plaintiff/respondent for making such approach for amendment of the plaint. He further contends that the principle of law laid down in Shrimoni Gurdawar Committee's case (supra) is exclusively applicable in the present case and the Impugned amendment is liable to be set aside in the light of the said decision itself.

9. Debunking such claim of the petitioners, Mr. C K Sarma Barua, learned Sr. counsel for the respondent has taken this court through the judicial decision of the Apex Court in BK Narayana Pillai v. Parameswaran Pillai and Ors. reported in (2000) 1 SCC 712 and applying the ratio of the aforesaid case he contends that the proposed amendment is neither inconsistent nor contrary to the pleas already

raised in the pleading itself. Since the suits are for ejectment of the petitioners, being tenants under the respondents, by the amendment In question, the plaintiff/respondent has only intended to Insert the ground of 'defaulters' in addition to the 'bona fide requirement' which has been manifestly reflected in the evidence. Amendment has been rightly permitted by the court; below because it would result in proper solution of real controversy between the parties.

10. Justifying the impugned order allowing the amendment, in the light of the said judgment, he submits that if the impugned order is set aside it would result in the reversal of the amendment and as such the plaintiff/respondent shall be greatly prejudiced because it would definitely open the flood gate for multiplicity of litigation.

11. The admitted position is that the defendants/petitioners are the tenants under the plaintiff/respondent and this suit has been pending since 1989 in the trial court. The tenants are liable to be evicted under any grounds laid down in the Act and it is for the plaintiff to take any ground for ejectment. It appears from the amendment petition that the plaintiff/respondent intends to delete the specific provisions, i.e., Section 5(l)(c) of the Act and wants the protection of Section 5 as a whole. Moreover on perusal of the evidence of one of the plaintiff, Mr. Sibnath Paul, as relied by Mr. Dey, learned Sr. counsel to the effect that there is no whisper as regards to evidence of defaulters', it appears that the said witness has clearly stated in his evidence as follows:

'...defendant paid rent upto the month of jaistha 1380 B.S. after Jaistha 1380 B.S. the defendant did not pay any rent and as such they became defaulters..........'

12. The said evidence clearly shows that the plaintiff/respondent has already hinted that the petitioners/defendants are defaulters.

13. At this stage Mr. Goswami, learned Sr. counsel objecting to such citation of the evidence, vehemently contends that such type of evidence cannot be accepted as the same is not in the pleadings in the instant case. The plaintiff as not pleaded such 'defaulters' against the defendants/petitioners. Relying on para 11 of the plaint he further submits that the plaintiff himself stated that the defendants are to pay arrear rent and compensation for which the plaintiff deserves to sue later. If required and accordingly it is stated that the plaintiff having reserved the right to sue later. It is up to the plaintiff to approach the court at any time to come up with the new plea as mentioned in the amendment petition.

14. Rejecting the said submissions made on behalf of the petitioner,

Mr. Sarma Barua pleads that in para 14 of the plaint, in the prayer portion, the plaintiff prayed for any other relief to which the court may be pleased to deem the plaintiff as entitled to. On the basis of this prayer also the plaintiff/respondents are permissible to bring this amendment by deleting the exact provisions of Section 5( 1 )(c) of the Act to make the prayer wider under the Act.

15. In BK Narayana Pillai v. Parameswaran Pillai and Ors. case (supra), the Apex Court dealing on the provisions of Order 6, Rule 17 of CPC, in para 3 observed as follows:

'The purpose and object of Order 6, Rule 17 is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment can not be claimed as matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation,'

16. Undoubtedly Order 6, Rule 17 provides that amendment may be allowed to the parties at any stage of the proceeding which may be justified and proper for the purpose of determining the real controversy in the suit provided the proposed amendment does not change the character of the suit or alter/substitute a new cause of action. In allowing such amendment it is the duty of the court in its exercise of discretionary power to see whether the proposed amendment will cause such prejudice to the other side which can not be compensated by cost.

17. Having regard to the aforesaid enunciation of the Apex Court, as well as upon hearing the learned counsel for the parties and also on perusal of the impugned order dated 25.6.2001. I am of the considered view that if the amendment is allowed by the impugned order the petitioner/defendant are not at all prejudiced. On the other hand it can be safely said it would be the plaintiff/respondent who will be highly prejudiced if the impugned order is negated. Since this court is satisfied that no prejudice has been caused to the petitioner and on being satisfied that no illegality or infirmity has been committed by the trial court in passing the impugned order, I am not at all inclined to interfere with the same.

18. Accordingly all these petitions are dismissed. It is made clear that the defendant be permitted to file written statement against the amended plaint and also be allowed to adduce fresh evidence if

necessary and so advised.


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